DPP v Tanner

10 years also. 8. Exhibit A was tendered by the prosecutor and the facts therein were admitted by Mr Sturges as the matters that I am to take into account in this sentence. 9. The circumstances of this crime, being intentionally cause injury, is inexplicable to the Court. Even accepting Mr Tanner was drunk from a bender, as set out in Exhibit A, [8] to [17]. He had been drinking whiskey the night before this offence and ordered a bottle again on this night prior to the assault, and this while he was taking prescription medication. 10. Mr Tanner was visiting his brother in Melbourne. Unfortunately by way of coincidence his niece decided to visit her father at the same time. 11. Mr Tanner has a long history of drinking and assaults from the age of 17 through to 33 and prior criminal damage offences when 27. 12. Those matters are detailed in the prior sheets but the matters that I want to emphasise are two damage to property charges which occurred when he was 27. There was a finding of guilty in regard to both matters, one finding in August 1993, another in June 1993, albeit a finding of guilty there were no convictions recorded. 13. He has also, from the age of 27 through to 43, been convicted of a number of assault charges. The first one was when he was aged 27 in August 1993. He was convicted of assault occasioning actual bodily harm while being in possession of a dangerous weapon. He was not subjected to gaol for this offence, but was put on probation for two years. Provided he serve that probation, as I understand the position, no conviction would have been recorded. 14. When he was 28, he was convicted in February 1994 of assault occasioning actual bodily harm. He was on that occasion sentenced to three months' gaol. Again, under the system there existing in Queensland, that sentence was suspended for a period of two years. 15. Despite those two instances he has committed three more offences of common assault, firstly, when he was 31 in which he was convicted in May 1997 and fined $450, secondly, when he was aged 40 when he was convicted in January of 2006 and again fined $400 with eight days gaol, that being the period, I understand, that he must have served by way of pre-sentence detention. And then finally when he was aged 43 in May of 2019 he was also convicted of common assault and fined $600. 16. As I said, he has had a long history of both drinking and of charges that I have just read out. He appears never to have been gaoled for any of these offences, albeit the suspended sentence for two years of three months' gaol in 2024. Despite that, as is obvious from what I have read out, he had two subsequent offences when he was 40 and 43, but again was fined only, and has had the two prior offences of damage property. 17. There is no evidence as to his drinking history except in the defendant's submission at [20], that he had had difficulties with substance issues for a long time. It was alleged in that document, that he had stopped participating in cannabis and methamphetamine by the time of these offences. 18. It was put to the Court by Mr Sturges that Mr Tanner has no memory of this offence. This is certainly what he told the police (see Exhibit A, para 53(b) and (f)). As I said in the plea, I do not believe this. However, as alcohol consumption is not put forward as an excuse for this crime, but as an explanation, I do not need to come to a finalised opinion on this for the purpose of sentencing. 19. As to those prior offences that I have identified, Mr Tanner, I want to assure you that you are not here to face sentencing for those crimes again. However, such matters are important in this sentence, as explained by the High Court in Veen (No.2) [1988] 164 CLR 465. At 477 they said this:

The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.

1. They went on, on the same page, to say the following:

... retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted [where there are prior similar offences].

1. The Victoria Court of Appeal spoke of these matters again in Berichon v The Queen [2013] VSCA 319, when they said at [44]:

... the applicant had a very serious and disturbing prior history with respect to the use of firearms. [Obviously that is nothing to do with this case, it is just that they were the circumstances in that case. And they went on then to quote the principle and I will go on with the quotation as follows] Although, of course, he is not to be punished again for the prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community's need for protection, and the increased importance of specific deterrence as an animating factor in the sentencing process.

1. Also in regard to his prior offences, it must be stated that they are somewhat remote, being that the last one occurred when he was 33, he is now 49.
2. Clearly the culpability here, and I am really talking about Charge 3, is aggravated by Mr Tanner with a history of alcohol abuse and assault offending, choosing despite medical warning and his own self-knowledge, to go on a bender while on medical prescription.
3. The defence accept that Mr Tanner's crime must be classified as a particularly violent attack (see para 13, Exhibit 1). Clearly this is so given:

(3), the apparently motiveless crime brought about by abuse of alcohol;

(4), the degree and intensity of the beating of this child, to the extent that she thought she was going to die (see paragraph 41 of Exhibit A and statement made to Dr Smith); and of course as demonstrated by the totality of the photos (Exhibit C, Exhibit G, and the material set out in the report) which are graphic, but demonstrate the degree of the beating of this child, as is detailed in the victim impact statement in Exhibit D;

(5), the sustained nature of the assault lasting approximately 20 minutes. The assault occurs between the time that a call was made to the victim's father at 10.41 and the neighbour calling Triple 0 at approximately 11 pm. The sustained nature and time over which this assault took place was significant when, as is set out in Exhibit A at paragraph 21, it was necessary for the child to play dead to avoid further beating. Such beating involved:

(i), swinging the complainant by her hair in her bedroom, into her desk, hitting her head into such desk;

1. The injuries are precisely detailed by the prosecution in Exhibit A at [39]. They involve the following:

(1), two severe lacerations to the forehead. Fortunately the two recent photos which were tendered to the Court, at the plea, demonstrate the excellent job done by the cosmetic or plastic surgeons involved;

(2), bruising to the face, the earlobe, the right eye and neck, and the chin;

(3), bruising to the body and back, in particular the stomping marks to the back (see [19] of Exhibit G), and the lower part of the left scapular;

(6), the fracture to the right first rib. I will come to the seriousness of that particular injury and the opinion of Mr Johnson as rehearsed in the report of Dr Andrea Smith.

1. Ms Tanner was formally discharged on 3 July. She has required plastic surgery to her forehead lacerations, she was lucky not to have ongoing facial/forehead scarring. In that regard, I have read the report of Dr Mills, the cosmetic dermatologist, Exhibit E.
2. The intensity of the beating was such that as part of the treatment a CT scan of the brain was required, because multiple blood layers and air had got, due to the lacerations, into the brain. That matter is set out at p16 of Exhibit G, being Dr Smith's report. Despite Exhibit G, of course the Court had before it no professional evidence as to the mental impact of such a beating on a young girl.
3. In regard to the injuries, and I will come to Exhibit G and the photos of Ms Tanner set out in that report and the stomping, detailed at p10 of the photos. The injuries to the body that I have summarised are set from pp127.9 through to 127.14 where the injuries to the head are also shown. As I have said, there was a CT scan of the brain and spine required which showed the blood layers and the lacerations. There were also an X-ray of the body which showed an acute fracture of the right first rib.
4. At p18 Ex G, the following comment was made from the orthopaedic surgeon,

Mr Michael Johnson, who is described as the spinal surgeon and Head at the Royal Children's Hospital Department of Orthopaedics. This was in regard to the first rib injury. He noted that first ribs are uncommonly fractured and when present are an indicator of severe trauma. He said that the presence of a first rib fracture should alert clinicians to possible spinal, neurological, brachial plexus or vascular injury affecting the limb. Fortunately, in this case investigation showed that none of those consequences had occurred. 5. It is to be noted that this is the typical injury that occurs in a very severe motor accident. The analogy obviously and the indication of where you get such injuries serves to indicate the serious nature of this beating. 6. As to her mental health, as detailed in the hospital report, Allison described the assault as the worst thing that has ever happened to her. 7. Coming then to the opinion of Dr Smith. That is expressed at p127.18 and is as follows:

[Allison Tanner] gave a very consistent account to Royal Children's Hospital staff about the alleged physical assault, which included [Nathaniel] pushing her across the room causing her head to impact the desk, stomping on her head, punching her and pulling her hair. [Allison] had multiple injuries that are entirely in keeping and support her allegations. [Allison] had two large lacerations that extended down to the bone. They result from significant blunt force trauma causing the skin to split or tear. However, it is not possible to determine which impact caused these injuries. As a result of the lacerations, air was able to track along the subgaleal space within her scalp, as noted by the CT brain scan. This air will be reabsorbed. She is likely to have residual forehead and scalp scarring.

1. As I said, fortunately despite the injuries detailed in those photos, the specialists have done an excellent job.

The left ear laceration and the bruising, and the swelling of the left ear, and the soft tissues behind and in front of both ears, is entirely compatible with being stomped on. However, other impacts to both sides of the head could have caused these soft tissue injuries. She has patterned bruises on her left posterior upper arm and left leg, the later suggestive of impact with an object which has a ridged surface. She had multiple other bruises which resulted from blunt force trauma, at sites that are uncommonly associated with accidental injury, such as her neck, torso, in her upper arms, and hands. These soft tissue injuries will heal without complication.

[Allison] also had an acute fracture of the right first rib. First rib fractures are uncommon injuries and are considered to result from high energy forces from a direct impact. ...[Allison] reported loss of consciousness, which could be secondary to concussion from the alleged head impacts. ....[Allison] thought she was going to die during the physical assault and the assault only ceased when she stopped moving and feigned unresponsiveness.

1. The recommendation at the time made by Dr Smith was that Allison undergo trauma informed counselling, if that was possible, in relation to this physical assault. I am no doctor, but having read the victim impact statement and the issues with Allison's education, it seems that that is a very good recommendation, if it has not already occurred.
2. I come then to Allison's own victim impact statement, which was tendered to the Court, Ex D. The victim impact statement noted her age and her attempt to describe:

... how the assault has affected me, not just physically but emotionally and mentally. [She noted] The person who hurt me was my uncle, someone who was meant to protect me and care about me. Instead I ended up in hospital needing surgery because of what he did. I have a scar on my forehead and I had broken ribs.

1. I think to be correct, a broken rib. It is noted that Allison will always remember the pain and that she wakes up at night. She says:

Because of my anxiety I have missed a lot of school and I have had to switch to distance education.

1. No doubt the family will be trying to assist in that regard to ensure that she goes back to full time education if it is possible. She makes the comment that:

... this type of betrayal does not just heal with time. It changes how safe you feel in the world. I don't know whether I will fully trust people again.

1. It seems to me in the circumstances there is nothing exaggerated in that statement and it is clear that Allison will need help in overcoming those circumstances.
2. Also as to the victim impact statement from Mr Andrew Tanner.[3] (Ex F) I also note his obvious concern, not only from when he came home, saw the state of the house and his daughter not there, but when he ultimately saw his daughter. And of course the fact that he has had to assist her in getting over the injuries and trying to get on with her life. Again, I did not see anything exaggerated in that evidence.
3. Insofar as the plea is concerned of Mr Sturges, Exhibit 1 was tendered, which was the submissions insofar as the plea was concerned. It was readily accepted that the cause of these crimes was the effect of the alcohol which Mr Tanner had consumed. It was put to the Court that there was nothing planned about this or sophisticated, and one cannot dispute that. However, realistically Mr Sturges accepted the vulnerability of the victim.
4. By way of mitigation, he spoke to the plea of guilty of Mr Tanner, such plea being utilitarian, being such that the victim, Ms Tanner, was saved from giving evidence. He submitted that the remorse expressed to the police in the record of interview was genuine. Indeed, as it is noted in the record of interview, Mr Tanner expressed disbelief that he could have been involved in an such assault of such degree on anyone, much less his niece.
5. I note he was supported by his son who is present here today remotely, and I have taken note of Exhibit 3 which is the character reference of Sam.[4] The comment as to 'out of character' is probably as his son knows his father. But as I have said, albeit some time ago, assaults were part of Mr Tanner's character.
6. I was provided with sentencing statistics. These are yardsticks. Sentencing statistics No.290 show for this offence alone, that is Charge 3, total effective sentences vary from 12 days to eight years and six months. That simply demonstrates the variation of offences that come before this Court. However, it is not quite correct, because the case that is referred to as demonstrating the eight years and six months, in fact when one reads it, it is a matter of R v Harvey (2020) VSC 496, it was an aggregate sentence. The sentence imposed for the relevant Charge 3 in this matter was a period of five years and six months for the intentionally cause injury. Those figures show a median sentence of one year and nine months, figure 5.
7. Figure 2, in the statistics, showed that over the period of the five years those statistics were taken, 80 per cent of people who are convicted of this offence get gaol. Of that figure, the records indicate that 76 per cent get immediate gaol and 23 per cent get gaol and a CCO, that is gaol involving an immediate sentence but with a CCO.
8. Also I have received other cases referred to by counsel. Both the statistics and the cases are taken by the Court as illustrative yardsticks, as referred to by the High Court in Pham [2015] HCA 39; [2015] 256 CLR 550, [29].

I refer to the following comments in Hasan v R [2010] VSCA 352, [45]:

Tables or graphs showing an average or mean sentence across the full spectrum from the statutory maximum to nothing, while important, will also be of limited use because they cannot of themselves identify the appropriate range for an offence, of the particular gravity of that for which the particular offender is to be punished. Indeed, their limitations are conveyed by the description given to them by the Sentencing Advisory Council.

Following an appropriate study of comparable cases together with the application of the relevant sentencing principles, the judge will be in a position to identify the boundaries, marking the range to which the particular sentence must fall. Up to this point, the exercise will have been a largely objective one but with an element of the subjective introduced by the process of instinctive synthesis, without which the case for which and the offender upon whom the sentence is to be imposed, cannot be assessed. Beyond the point at which the boundaries are identified however, the judge must exercise his discretion deciding upon wherein the range the particular sentence falls.

1. As I say, the cases presented particularly different circumstances, however, the decision in Gommers v The Queen [2021] VSCA 258 was of assistance. There, a three year sentence for this offence was upheld. As the Court said at [44]:

... the seriousness of such offence is to be gauged not only by the injuries caused, but by the manner of their infliction and the results of the need for surgical interference.

1. It was noted by the Court, the circumstance in that case of there being no provocation or threat to the person who committed to the crime.
2. Here, as accepted by the defence, this is a serious example of gratuitous violence explained only by the excess of alcohol involved. At [46] of Gommers the Court said that appropriate considerations as to rehabilitation are to be subject to other statutory considerations of general deterrence in cases such as this. And further, Winneke ACJ at the time, in R v Wright [1998] VSCA 84, at [6], stated:

rehabilitation must take a 'back seat' to special and general deterrence where the crime of wanton and unprovoked viciousness is involved ...

1. One is never quite sure, when one has been a Judge for a long while, however, I consider as best I can remember, at no stage have I had to deal with an assault which was so wanton and vicious, and committed upon an innocent, defenceless girl, who was Mr Tanners' niece.
2. I find the objective gravity of the offence to be very high.
3. In the sentence, one is required to take into account the principles of Dalgleish [2017] HCA 41; (2017) 91 ALJR 1063 1075, [64]-[68]. That decision reveals current sentencing practice does not require the Court to impose a sentence other than one that is just according to the law. The Court is free to depart from sentencing practice if the justice of the case demands it. The Court, the joint judgment, emphasised a number of matters when imposing a sentence, but what is stressed is that the administration of the criminal law involves individualised justice and the imposition of a just sentence on Mr Tanner, and the exercise of judicial discretion to do justice in this case to Mr Tanner, based upon the facts of this case.
4. Mr Tanner, as I said you will not be required to stand. I come then to the sentence.
5. Taking account of all the submissions put to me and the principles that I have referred to, I sentence Mr Tanner as follows.
6. Charge 1, the criminal damage to the television, three months' imprisonment.
7. Charge 2, the criminal damage to the door, one month imprisonment.
8. Charge 3, the intentional infliction of injury upon his niece, five years' imprisonment.
9. I make no order for cumulation. That means that the total effective sentence imposed upon you, Mr Tanner, is a period of five years imprisonment.
10. I order that you must serve a period of three years and four months before being eligible for parole.
11. I declare that the pre-sentence detention that you have spent of nearly one year, being 312 days, be declared as service of this sentence, and be recorded in the records of this Court.
12. Mr Tanner, I am required by Parliament pursuant to s 6AAA, to do what is quite difficult, that is to take into account one factor only, that is your plea of guilty, and to indicate to you what you would have been sentenced to had you not pleaded guilty. Doing as best I can, had you not pleaded guilty the sentence I would have imposed would be six and a half years imprisonment with a non-parole period of four years and four months.
13. As against that, because of your plea as you now know, the sentence the Court imposed is one of five years with a period of three years and four months to be served before you are eligible for parole, and of course you have already served nearly one year of that minimum parole period.
14. I will make the compensation orders that have been sought.
15. Unless there are any matters I need to clarify from either counsel, that is the sentence of Mr Tanner.
16. MR RATTRAY: As the Court pleases.
17. MS PARK: As Your Honour pleases.
18. HIS HONOUR: Thank you.